42 F. 381 -

42 F1d 381

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Case Text

BAY 11. HALLENBECX.

881

RAY'. HALLENBECK

et aZ.

'

(OirC'Uft Oourt, E. D. New York. April Term, 1890)

L

:MORTGAGES-CONSIDERATION-RELATIONSHIP.

The relationship exil:Sting between father and daughter is su1ncient to uphold a mortgage given by her to him as security for her deceased husband's debts, though they could not have been enforced as against her. On foreclosure proceedings, testimony by the daughter that she handed the mortgage to her mother, who occupied rooms in her house with the father, and that she afterwards saw it in a bureau drawer in their room, shows that she intended the mortgage for the father; and, as it reached and was accepted by him, the transac· tion constitutes a delivery to the father. The mortgage, though unrecorded when the daughter made a voluntary convey. ance of the premises to her second husband, who had, however, theretofore discharged an attachment against them, is entitled to priority over the conveyance, but subject to the amount paid on the attachment.

S.

BUI'Jl-DELIVERY.

I.

SAME-PRIORITIES-RECORDING.

In Equity. On bill to foreclose. W. M. Safford, for complainant. Joseph A. Burr, for defendants.
WHEELER, J. This suit is brought to foreclose a mortgage of $4,825 made by the defendant Annette M. Hallenbeck, daughter of the oralor and wife of the other defendant, November 16, 1882, and recorded June 17, 1887, on a house and lot in Brooklyn conveyed to the other defendant April 23, 1883, by deeds recorded May 5, 1883. The defendants deny consideration for, and delivery of, the mortgage, and validity of it against the prior recorded conveyances.' A former husband of Annette M. Hallenbeqk owned the premises, and conveyed them to her. He owed the orator $3,000 or $4,000 in notes, and another debt of about $1,200, and died leaving Httle personal estate. She was administratrix. The orator insists that she promised to pay his debt if he would not pursue the estate; that she has paid many small sums upon it; and that this mortgage waS! given for the balance, and he supposed recorded at the time, and soon after was delivered to him. The premises were attached in a suit upon her notes given for the other debt. She insists that the small Bums were filial gifts for the comfort of her parents, and that the mortgage was suggested by the attachment as a security for their support, and was given for that purpose only. Letters from her, sent with money, show it was paid under what she deemed to bean obligation, rather than sent as a free gift. The orator's testimony, with these letters, and the fact of the making of the mortgage, overcome the answers, and make out satisfactorily that the debt of the former husband, and her situation in respect to it, were the consideration of the mortgage, which the attachment of the premises prompted at that time. The counsel for the defendant argues that the mortgage would be mere security for a debt; that she would be under no obligation to pay the debts of her former husband; and that her promise to. pay it, or note or for them, would be without consideration and void, leaving bond

FEDERAL

vol. 42.

the mortgage without ll;nything to be enforced for. This would be true in respect to the dehts' alone; but assets' in her hands as administratrix, liable tgbe for the; debts, might afford a good consideration for a promise to pay theni as an original undertaking by her. Tem.pletOn v. Bascom, 33 Vt. 132. The personal assets were. however, too 'any substantial consideration.for an obligation for such a large debt; and whether th.e mortgaged premIses could have been reached debt must be considered as without a suffiis not clear. The ciEmtcoIlsiderationio; s'ttpport an action at law upon it. This does not show,however,thatthemortgage is not good. A mortgagee has an estate in the mortgaged premises from the right to enforce the debt otherwise. 2 Washb. Real Prop. bk. 1, c. 16, § 4; Trowbridge on Mort8 Mass. Rep.'Supp. 554. 'fhis shown by the fact that letting the ,debt.become barred, byitStatute, of limitations, or satisfying or suspending it by imprisonment of the debtor, has no effectnpon the right to proceed upon the mortgage. Burnellv. Martin, 2 Doug.417; Da'/,-iav. Battine, 2 Russ. & M. 76; Tappan v. Evans, 11 N. H. 311; Richmond v. Aiken, 25 Vt. 324. The consideration need only be sufficient to uphold the mortgage as a conveyance of this estate in order to make it valid between to it, and othtlrs having no greater rights. This mortgage is the made by indenture of bnrgainandsale containing the word "grant," and others'df conveyance. The relation of blood between father and daughter lt6uld be a sufficient consideration for such a deed absolute of the mortgaged 2 Bl. Comm. 296; 4 Kent, Comm. 464; 3 Washb. Real Prop. bk. 3, c. 5,§ 3. This is elementary. No more would be neCE'8Saryto uphold' the conveyance upon condition than one absolute. The estate conveyed is the same. One may be defeated, the other not. This estate could be defeated by the payment of the "snm of money menthe condition;" Dot by defeating liability on the debt. As argued; the mortgage was security for the debt, and nothing more; but the debt was the one described in the mortgage, as described, and not what could be enforced at law otherwise. The,consideration would uphold a conveyance of 80 much ofthe estate' as she chose to and could convey. She chose to and did convey so much .of it, as far as she could, as. would to secure the debt set forth, if the mortgage was delivered: of delivery does not seem difficult. She does not testify that she changed her mind after she had the mortgage made, intendingitfdr herfather's security and intended, after that, to keep Hfrom hini,butdoes testify tha;t she gave it to her mother. In another part of her testimony, she states,that all conversation about sending money was with her mother·. lIer father andrnother occupied the same rooms in hei' h'ouse. and she says that she afterwards saw the mortgage in the lhlreau drawer in their room. If she actually gave the mortgage to her mother instead of to her. fathel', these circumstances show that she intended' it Jor him; and; as it reached and was accepted by him, the effect was the Same. .. The attachment was in force as a lien on the premises at the time of the "fhe defendant John J. Hallenbeck paid it off,

RAGSDALE

. In answer avers that the collision was caused 'by the negligence of the in charge of train No.1, whose duty it was to 'stop at the station, and not to proceed beyond the same until the proper clearance order had been obtained. If the plaintiff had been a brakeman or fireman on tra1n No.1, and had been injured in the collision, without fault on his owu part, it is cIearthat, under the rule recognized in the Ross GI8e, he would have had' a· right of recovery agaiust the company,becauae the answer avers that the collision was due to the· negligence of the parties in command of that train, and who occupied the same relation to it that the conductor did in the Ross Ca.se. Is a dit:. ferent conclusion to be reached by reason of the fact' that the plaintiff waS a fireman' upon engine No. 181? The supreme court holds that the conductor, having tne control and management of the running of the train, is to be deemed to be the representative of the company , and not a fellow-serVant with the engineer and other employes on that tra.in. So far as the· running and management of the train under his control is concerned, does he cease to occupy such representative capacity under any circumstances? Suppose in the collision in question the fireman· upon train No.1 had been injured as well asthe plaintiff, and both had brought suit to recover for the injuries received. Under the rule laid, down in the Ross .CaBe, the court would be required in the one case to instruct the jury that the conductor in charge of train No.1 was, by reason of the nature of his employment in connection with the train, the representative of the company, for wbose negligence the master would. be liable. Upon what theory could the court in the next case charge the jury that. in the running and management of this train the conductor was not the representative of the company, but was in fact a fellow-servant with the employes upon the other train? ' The control of the train is placed in the hands of the conductor, in order that there should be some responsible person charged with the duty the train; that is, of determining when the train shall of properly stop,and when it shall proceed, with'reference to meeting andpassinK other trains upon the road. This power of control over the movements is not conferred upon the conductor with sole reference of a given to the safety of the train upon which he is acting as conductor. He is chllrged with the duty of so moving own train as to secure not orrly , its own safety ,but also to aid in securing the safety of other trains which are moving upon the same portion of the line. In the management of his own train the conductor mnst ever bear in mind that there may be otber trains upon the road, and to secure the safety of his own train, and' also of other trains, he must, as the representative of the company,exercise due care to avoidcollisiolls. It is unquestionably the duty of the coUl pany, in running its trains, to exercise due care to see that the'movements thereof are so regulated that collisions shall be prevented. For that purpose the defendant company 'adopted the rule set up in the answer. between the hours of 7 P.M. and: 7 A.M;no train mast pass beyond a telegraph station until it had received thenecessa.ry clearance order. The ,conductor of train No.1 was charged with tbe dut;y V .42F.no.7-25

of for of his own train; but also,for the proteetiOI,l;'of,anyother the s1:&tion from. employes on, train No. 1 had thtrright to re1yuponthe conductorr.for ,the,proper observance of this duty, and, if he negligently disobeyed the rule. any employe s1,lffering injury would, under :thedoetrine of. th,e:Ro88 Cll$e, have a right of aotion against the jThe conetuptor was pla.ced in (lotltrol of the movemeJ;ltsof ·. by 9fthe powerthu!lconferred upon him, he beCam,e, representatjye ,of the coJ+lpany in; that particular.' The emtrJLin,which was properly handled, had the l1.ght ployes upon the to of the compnny that it would, through its representatives, so control ,the movements·of its other trains.that the track would. be left the passageor."the train going .westward. The .company undertq<>lt tp plovetrain No.. 1 eastward over the line between Missoula and Arlee :at the sa.me time that plaintiff's train was moving westward. Under tsuqh circumstances, it was certainly .the duty of the company to iaJ,ldcontrol .the xp.ovements of both trains, so as to preYElnta collision; and if in the'Jnp"jng of .traiI;l.No. 1 the conductor was the represeIJ.tative of the Compltny, it Dl.Ust follow that, for negligence on parlof:therepresentativlBofthe company, the latter would be liable to any. one. inj ured thereby·.. Thenegligent moving of. train No.1 would caus", qanger to t}wemploYes of both ,trains alike, and the company owed the to the creWs ,on each train. It is difficult to perceive any gooq.ground, therefore, for holding that if the company, through its repthe conduetqroftrain.No.l, was guilty of negligence'in,the xno,ving of that; train,thereby causing.a collision, any employe injured thereby have a. right of aC.t.ion against the company, irrespective of the question of which one of the colliding trains he hagpened to time ofreceiving the injuries. be on On partpfplaintiff,it,is further claimed that the statute of Montana, in forCe. 'Yhen the acci<fflnt, happened,modifies the common-law rule in l'egard to theliabiJity fO!1 the acts offellow-servants. The statute (section St;1888}isas follows:, .. Tha,t in every case' the -liability of the corporation to a servant or emt>Ioye, ' actingunder the ordt'rs of his superlor.,shall be the same ill case of injury sus.tainedbyd.efll.ult or wr<mgful act!)f bis superior, or to an emp1c>ye not apor br lii1J,1,. as if or employe were a ,This 8t.atute does not goroo the lengthof abrogating the general rule that the, master isnotJiable to an employe for the consequences of the but it doos enact, in effect, that a superior isnotfl.co..employe with an:,inferior,'and that one may be a superior,as oomplued wi thnnother) ev.en. though the Jormer· does not control the latter.! upon the known fact that, in carrying on the business, of railroading, there are recognized grades among thenumerous; cmssefli of:JemplQyeaf' and,whi1e they all· are· working for a 'qomPlon master &,ild:for an 1Illtimate· common result, they ate practically not all coservants·. ;:The present plaintiff wasrafireman t and his duties were limited geQ.f;l(a.1l1;'to 'll:ttendingto :tbeJ,furnaee and otbermatters· upon the engine.

f7. NOR'rHERN PAC. &

pO.

383

at the sum of$1,470.55, at the time of the conveyance to him. He paid nothing further at the time. The evidence shows expenditures by him for hjs, wife, the other defendant" before Qlarriage and since, but does bargain he took the premises in payment of these debts, nor 8nyother negotiation by which he became a purchaser of them. As to everything except the paying off of the attachment, the to him appears .to have been purely voluntary. He was not in reali,tya purchaser. Such a conveyance would not postpone the terestcovered by the prior unrecorded mortgage to itself. 4 Kent, Comm. 171. But,as the mortgage would not convey the interest covered by the attachment, he would seem to have acquired a right,. to that extent, prior to the mortgage, by paying that off, and taking the conveyance. Except to this extent, he appears to hold the title conveyed to him for his wife, the other defendant, and to have no greater righta against the orator's mortgage than she has. The orator, upon .these considerations. seems entitled to a decree or forecloslue, except as to the. amount of that lien: That may be by therents ofthe premises received by John J. Hallenbeck OVI;)F and above the expenditures about them since his deed; and due on the appears to have been lessened by some paymeIits. An account of the sum due on each seems to be necessary. Let a decree be entered for an account of the amount due the orator on mortgage, and of the amount due the defendant John J. Hallenbeck on,' the amount paid by him on account or" attachment lien, and for a foreclosure of the mortgage subject to, a priority in his favor for the amount due him, with costs.

RAGSDALE f'. NORTHERN PAC. R.

Co.

(Oircuit Oourt, D. Minnesota. November 15,1889.)
1.

In an action against a railroad company for injuries received by a fireman on a 10colIlotivein a collision with another train, it is no defense that ,the negligence of the of the latter train, in passing a station without stopping for orders, caused tbe'oollision, since .he is the representative of the railroad in charge of the , trainj and not tbEjfeliow-servant of the employes on either train. 2. AND FIREMAN. , Nor is the ilIigineer in charge of the engine oD,which plaintiff was fireman a fellow-servant of plaintiff, and that his negligence caused the collision is no defen8EI to the action. ,; . 8. SAME. ' The con.ductor istbe superior of the fireman on the other train. within the mean· iIjg of Compo St. Mont. § 697 providing that "the. liability of a corporation to an employe acting under the orders of his superior shall be the saIne in the case of in. jury sustained by default or wrongful act of his superior, or to an employe not appointed or by him, lIoS if such servant or employe were.a passenger."

MASTER AND

AND FmBMAN.

. At-Law.

On demurrer to answer. .. ' &$ . .Olapp, for plaintiff.

FEl:>ERAL REPORTER,

vol. 42.

John'

B'll.Uitt,'Jr., for defendant.

Sl!IRAS, J. In the amended complaint filed in this cause it is averred tbaton the 17th day of March, 1888, the plaintiff was in the employ of tile defendant company as a locomotive fireman; that in the performance of his duty as such he was on that day required to go upon engine No. 181, which was pulling a train between Missoula and Arlee, upon the line of defendant's road, in the then territory of Montana; that, through the fault and negligence of the defendant, a collision occurred between the train on which plaintiff was employed and another train longing to defendant, near the station called "Evaro;" that plaintiff, to avoid the danger of being crushed to death by the coming collision, jumped from the engine on which he was firing, and received injuries resulting in the amputation of his right leg. In the answer filed, it is averred that, by the rules of the company in force when the accident happened, it was the duty of all trains on defendant's foad to stop at all ilighttelegraph offices, and receive a clearance order before proceeding past such office, between the hours of 7 P. M. and 7 A. M.; that under the rule it was the duty of the persons operating train No.1 to stop at said station of Evaro, and not to pass the same until the. proper clearance order, had been received; that,disregarding such rule, the persons <>peratingsilid train No.1 did not stop at said station, but proceeded on eastward until said train No., 1 met the engine on which plaintiff was riding, and carne in collision therewith; that the collision was caused by the negligence of the, petsons operating train No.1; that such persons were fellow-servants with the plaintiff, and for their negligence the defendant is not responsible. The demurrer to the answer presents the question whether the facts therein averred show that the defendant company is not liable for the injuries received by plaintiff. If the solution of the problem thus presented was wholly dependent upon the determination of the questioriwhether, under the rule of the {Jommon law, the plaintiff and the parties in charge of train No.1, were fellow-servants; we'would have presented the exact point which the v. supreme court stated"but did Il,ot decide, in the case of Railroad ROs8, 112 U.8.S77,'5 Sup. Ct.tRep.184. In that case an engineer was injured in a collision between two trains, which resulted from the negligence of the conductor of each train. The supreme court held that the relation of fellow-servant did not exist between the engineer and the conductor of the train on whkh the engineer was employed, but did not pass upon the question whether the conductor of the other train was or was not a fellow-servant with the injured engineer. The conclusion reached ip that case, to the effect that the engineer and conductor of the . same train were not fellow-servants, is placed upon the ground that the {Jond.uctor was charged with the duty of running the train; was in command ofits movements; directed when it should stop and when it should proceed; had the general management thereof and control over the persons on the train; and must therefore be held to be the representative of the company, for whose negligence the latter would be responsible..

387
with th'e duty of controlling the movement the'traihs; 'The answer expressly averstha:t.the-colJision was cRusedby the negligence of the officials in coniwhich mand:of the movement of train No,l, and there'is nei fact tends to show that as to themtheplaiIitiff occllpied any otnerposition than that bf an inferior, -within the meaning of the -statute of'MontaIia. The actofinegligence set up in the 'answer is that train No.1'was moved past- the telegraph station in 'violation ofthe rule of the'company,and it is averred that this was done by those in command' of such train: It will certainly:not be claimed that a fireman upon theengiileis an employe charged 'with the control of the moving of the trains, a duty primarily imposed upon the conductor, and it is certainly the fair inferehce th'at in the mOVing and rnnning of trains the conductor is the superior of a fireman, 'In other words,the conductor or party charged th the control of thetrllin is a superior, as compared with a firema:n, within th,e meaning ofithe Montana statute. Under this section, the corporation is made liable to any one of its employes who, without negligence on his .part, is injured by the default or wrongful act of a superior, even though -the latter has no control over the former. Whether, therefore, the liability of the defendant corporation is to be determined under the com·· mon-law rule or under the statute of Montana,' the facts set forth in the answer' do not show that the act' of negligence causing the collision and consequent injury to plaintiff was the act of a co-employe, but, on the contrary, it would appear therefrom that such act of negligence was the act oithe representative of the corporation, who'was also the superior of the plail'ltifl'. This being the conclusion, it follows that the answer is insufficie'nt, and the demurrer thereto is sustained.

"

He did',not 'belong to thltt 'class' of

wi

SHIRAS, J. This cause has already been before the court on demurrer to the answer, and in the opinion then given it was .held that, under·thecommon-lRw rule and under ·the .provisions of the statute of the Montana, it could not be held that a fireman was a conduotor of a train by whose negligence in controlling the movements of his train a collision was caused with the engine upon which the plaintiff wRsacting as fireman, By an amended answer now on file, it is averred that the collision was caused by the negligence of the engineer in charge of the engine upon which the plaintiff was acting as fireman, and that they were co-employes, and therefore the company is not liable. It is averred in the amended answer that the accident occurred on .tI1e 17th day of March, 1888; that on that day, and for some time prior thereto, the rules of the company provided that between the hours Of seven in the evening and seven in the morning all trains should consider ihemselvesheld for orders at all night telegraph offices, and in accordance with said rule it was the duty of all trains on the defendant's line of railroad: to stop at all night telegraph offices, and receive a clearance order, before proceeding past such office, between the hours named; that the rules oitbe defendant further provided that,in approaching stations whereat there are switches, all freight 'lrainsmtist move 'with great